The president’s executive order will violate the text and history of the 14th Amendment.

Gage Skidmore / Flickr.comIn 1868, the U.S. Constitution was formally amended to enshrine the principle of birthright citizenship. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof," declares the 14th Amendment, "are citizens of the United States and of the State wherein they reside."

To say the least, Donald Trump is not a fan of that particular constitutional provision. "A woman gets pregnant. She's nine months, she walks across the border, she has the baby in the United States, and we take care of the baby for 85 years. I don't think so," then-candidate Trump complained in 2015.

President Trump has apparently decided that now is the time to do something about it. "We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States...with all of those benefits," Trump toldAxios yesterday. "It's ridiculous. And it has to end." How does Trump plan to end it? "It's in the process. It'll happen...with an executive order."

There's just one problem with Trump's plan to abolish birthright citizenship via executive order: It would be flatly unconstitutional. Indeed, whether Trump and his supporters like it or not, the text and history of the 14th Amendment are clear: If a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.

Start with the text. All immigrants to the United States are "subject to the jurisdiction" of this country while they are within its borders, which is another way of saying that they must obey U.S. law or else face punishment in the U.S. legal system. That is true for both legal and illegal immigrants. Which means that the U.S.-born children of both legal and illegal immigrants clearly qualify for birthright citizenship under the 14th Amendment.

By contrast, the U.S.-born children of foreign ambassadors and ministers do not qualify. That's because their parents have diplomatic immunity and remain subject to the jurisdiction of their home governments. The same thing may be said of invading foreign troops, who are subject to the laws of war. Those are the principal limited exceptions to the 14th Amendment's broad guarantee of birthright citizenship.

So that's the text. What about the history?

The 14th Amendment was introduced and debated in Congress in 1866. The first senator to speak out in opposition to its birthright citizenship guarantee was Edgar Cowan, a Republican from Pennsylvania. "Is the child of a Gypsy born in Pennsylvania a citizen?" Cowan objected. "Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?"

Republican Sen. John Conness of California responded. "We are entirely ready to accept the provision proposed in this constitutional amendment," Conness declared, "that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law." Even the children of unpopular immigrants, Conness stressed, including the Chinese and the Gypsies, "shall be citizens."

That last point is worth emphasizing. Under the racist terms of the Naturalization Act of 1790, U.S. citizenship was restricted to whites only. That meant that the "Mongolian parents" Conness referred to were not (and could not be) U.S. citizens—yet thanks to the 14th Amendment, "the children born here of Mongolian parents" instantly became U.S. citizens at birth.

Notice that both the supporters and the opponents of the 14th Amendment agreed that it secured birthright citizenship to nearly all U.S.-born children (the primary exceptions being the U.S.-born children of ambassadors and of foreign ministers). The two sides only disagreed about whether or not this sweeping guarantee of birthright citizenship was a good idea to begin with.

In short, the original meaning of the 14th Amendment has been clear since 1866. If Trump proceeds with his unconstitutional executive order attacking birthright citizenship, he deserves to be laughed out of court.

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Seyton is just stupid and obviously not versed in constitutional theory. First, the fourteenth and de sangue citizenship has been a subject of scholarship for decades. There is no constitutional ruling on it by the USSC, so calling it flatly unconstitutional to change citizenship to de solis is just ignorant on seytons part.

Secondly, to reach a question on the constitutionality, it required action by the executive as there can be no claims of harm for a citizen suing the interpretation of de Solis.

A year before Obama's term ended I do remember reading an article from a liberal source bringing up that very point. That liberals will regret looking the other way when Obama did such things as it will go the other way at some point in the future. The future is NOW!

There USB a court case that the child of a diplomat born here isn't not a citizen since the parent has no allegiance to the US. Ian it possible to hat that the lawyyers could torture that decision to extend to people here illegally?

"Almost everyone, except HiLIARy, can, which would make that clause meaningless."

No. It means that clause applies to nearly everyone, because it was meant to apply to nearly everyone. It was drafted, specifically, to apply to children born in the United States whose parents were not citizens.

Everybody is subject to the jurisdiction of our laws while here really... We can and have ignored diplomatic immunity in the past. So that whole argument is retarded. I imagine if one UNSELECTIVELY went back through quotes around the time of the passing, you would find politicians stating that it DIDN'T mean what the current interpretation implies too. You can do the same for a lot of things in the constitution or earlier amendments. People differed on their opinions of what some things meant EVEN AT THE TIME OF PASSING. Just as happens with modern laws!

Wouldn't require much torture, IMO. The illegal alien not only has no allegiance, but unlike the diplomat, is here in direct contravention to our laws. If the children of diplomats don't get citizenship, the children of illegal aliens ought to be a no-brainer.

Even those with only partial diplomatic immunity are not fully subject to the jurisdiction of the US as a matter of legal immunity, not as a matter of political allegiance.

An alien in the US illegally has zero immunity. Qu

Quite frankly I agree on a policy basis, that aliens not in the US legally should be excluded from de solis citizenship. However, basing an argument for that on the exclusion of the children of diplomats from de solis citizenship is still absolute nonsense.

"In short, we simply need to say 'We're looking at this from a de jure stand point, and we don't consider these people under our full jurisdiction. DONE.'"

This would be roughly as effective as saying "We're treating the right to possess firearms as belonging to members of federally-regulated militias only, and we didn't authorize any federal militias, so we can seize all the firearms from everyone. DONE."

"What about all those times that foreign nations have demanded that people be extradited when charged with crimes, on the basis that they have no right to charge and imprison them?"

What about it?
A foreign nation's opinion of jurisdiction is of limited interest if the U.S. court determines it has jurisdiction, unless we're asking that foreign nation to help us apprehend the fellow. If we already have him, no other country's notion of jurisdiction is relevant at all. Usually, if a guy we want is in another country, we'll ask that country to grab him up and hand him over. Sometimes, but very rarely, we go do the job ourselves without mentioning it to the other country. We grabbed up Saddam Hussein in his own country, for example, and we nabbed Osama bin Laden from Pakistan and told them about it afterwards.

So in short, you're wrong about the 2A, because the broader idea IS the one supported by evidence, statements of the time etc...

And for your 2nd point, you're basically just saying "Who cares about anything, or what other nations say! If we interpret our own law in an irrational way, because it serves MY idea of how we should run immigration, I like it!"

There's no argument there. The text as written can very plainly be interpreted in the way I think is better... And the people who wrote and discussed the damn thing in congress said they agree with my position! LOL

"The text as written can very plainly be interpreted in the way I think is better."

You can keep talking about the reality you wish existed. I'm going to keep working within the reality that does exist.

"And the people who wrote and discussed the damn thing in congress said they agree with my position!"

And yet the text they ratified, doesn't agree with your position at all. They wrote text that provided that anyone born in the U.S. is a U.S. citizen, with very little wiggle room, because they didn't want the former Confederate state legislatures to wiggle out of U.S. (and state) citizenship for anyone born in the U.S.

You're literally making that up from absolutely NOTHING. God you're thick!

The text itself leans towards MY interpretation as far as a plain reading goes. The guy who wrote it SAID he intended MY MEANING.

So you're not sticking with any "reality as it exists," you're sticking with ASSUMED interpretations that have NEVER been scrutinized by SCOTUS. Jesus you're retarded, and arrogant. Or maybe just so dumb you believe your own BS.

I will LOL my ass off when Kav is the deciding vote and going with my interpretation, and idiots like you, and all the dirty progs shit their pants and start crying because all the illegals don't get citizenship for their anchor babies anymore.

If I am in France and am motoring down the highway at 150 Klicks, I am UNDER the jurisdiction of France's laws, particularly those of my speed on the highway. The Gendarmes have full authority to accost me and haul me before the magistrate for action against me. But the government of France cannot draft me into their military, cannot allow me to hold publicc office, seat me on a jury for a criminal trial, own a firearm, make me pay income tax, nor own a business and probably not own a French registered vessel or aircraft. I am physically PRESENT on their dirt, thus UNDER their jurisdiction on many bases. But I am NOT a lawful resident nor a citizen, thus I am NOT "subject to the jurisdiction" of the government of France, nor of the Arondissement where I was arrested for my excess velocity.

That said as a ferinstance, France does, or at least used to late last century, confer de solis citizenship.. so if I happen to have a child born to me whilst anywhere on their dirt, that child IS a Frenchman. But that is NOT the case here in the US. Their laws regarding that are VERY clear and strong. Ours are not the same, despite the wishful thinking of certain classes of people.

That's because Europe USUALLY has bad decisions about things. But not always. Most European nations ended slavery first, as a for instance. The fact that they realize that the concept of 100% birthright citizenship was a bad idea in a world with cheap and fast global travel doesn't make them wrong. It IS a bad idea in the modern world, and would have been a bad idea back in the day too as far as principle is concerned, but it wasn't as much of a PRACTICAL concern until mass movement of people from wholly alien cultures became possible.

I'm not an open borders guy. Open borders are suicide for ANY 1st world nation. I'll take freedom and a high standard of living over the "right" of international freedom of movement, even if it IS a morally correct position. To lose all other freedoms for a single meh freedom just ain't worth it.

And James, we don't need to do that if the interpretation of the 14th has been wrong... Since SCOTUS has never decided, it is up for grabs, and the evidence seems to line up AGAINST your interpretation.

Trump, in desert camo, crouching behind a dune somewhere in the Arizona desert, defending the border.
Look, there he goes, running from cactus to cactus looking for a good place to hide! There he goes, wading around in the Rio Grande. Now, he's climbing up on top of the border wall, using his Trump-branded binoculars to keep an eye on everything. Oops, some illegal just climbed over the wall, and jumped down, and now she's running away on our side of the wall! Watch Trump in action, as he runs her down and makes a flying tackle (they'll cut out the part where he feels her up while cuffing her and handing her off to Sheriff Joe for processing into the tent city that used to be a Walmart where they hold the illegals.

"If I am in France and am motoring down the highway at 150 Klicks, I am UNDER the jurisdiction of France's laws, particularly those of my speed on the highway. The Gendarmes have full authority to accost me and haul me before the magistrate for action against me"

First off, the Gendarmes have no right to accost you, unless the area you are motoring through is under martial law. The word you were looking for is "police". The French word for "police" is "police".
Second, and much, much more importantly, if the officer of the government can seize you and the court has authority to charge you and render a decision regarding punishment, you are subject to its jurisdiction. If you are NOT subject to its jurisdiction, then it cannot render judgment concerning you, of any kind, for any reason.

So, for example, if you are apprehended in France for speeding, a court in Serbia cannot then determine that since you're guilty of speeding in France, the contents of your US bank accounts are forfeited to Serbia. Neither you, nor your bank accounts, are subject to the jurisdiction of Serbia..

Sorry Matthew but that makes no sense. Foreign nationals, even those on tourist or work visas (not immigration visas with permanent residence status) are subject to their home country's jurisdiction. Because of the visa authorization, they have agreed to abide by USA law while in the USA. Immigration visas are different because the person is receiving permission to reside in the USA and live under USA jurisdiction and law. A foreign national that has entered the country illegally, IOW does not have USA approval to be in the country, is under their home country's jurisdiction.

IMHO we should take any illegal foreign nationals, found to be in the USA, and turn them over to their home country's Embassy with legal notice that if they enter the USA again then they will go to jail/prison and their home country will be charged for the expense of their citizen.

"A foreign national that has entered the country illegally, IOW does not have USA approval to be in the country, is under their home country's jurisdiction."

A person is under their own country's jurisdiction, AND is also subject to the jurisdiction of the country they happen to be in at any given time. One does not preclude the other.

If I sneak into Canada, the mounties can arrest me and charge me with a crime. Their courts would have jurisdiction to lay judgment upon me, because I was in Canada. If the reason I was in Canada was I was trying to dodge an arrest warrant, the mounties can hand me over to the Sheriff's deputy at the border crossing when I'm repatriated, and then a U.S. court can also proceed against me.

If you could only be subject to one jurisdiction at a time, our country's legal system wouldn't work, because at any given time you're in the U.S., you're subject to both state and federal jurisdiction.

Why is their allegiance assumed? The atheists always claim that positive claims must be evidenced. So, evidence that they are actually loyal to the US over their home country, and not just coming for cash and gibs?

The NFL player Villanueva is a US citizen even though his parents were stationed here as a military officer for Spain working under NATO. So apparently a Russian general could have a baby here and that baby would be a US citizen...we are super smart.

You are right, why should we make the Russian general go through the trouble of getting his pregnant wife here?? We should just let them sign a document that automatically grants citizenship. I mean naturalization is so stupid and you are so smart. You are super duper smart!

"Wouldn't require much torture, IMO. The illegal alien not only has no allegiance, but unlike the diplomat, is here in direct contravention to our laws. If the children of diplomats don't get citizenship, the children of illegal aliens ought to be a no-brainer."

Brett, be careful what you wish for.

If illegal immigrants are not subject to the jurisdiction of the United States, then we have no authority to kick them out.

You seem to be unclear on the concept of "subject to the jurisdiction thereof".
It doesn't mean they can't be punished for breaking out laws.
Tionico|10.30.18 @ 6:52PM|
gave a good explanation of what legal repercussions can be applied and what can't. Those things that can't be done - drafting, holding public office, seat on a jury for a criminal trial, own a firearm, etc., define what the clause means beyond just citing or arresting, prosecuting and punishing.
Then he got it wrong about France granting birthright citizenship - it doesn't.

The same restrictions hold true for 17-year-olds. Are you contending that they are not citizens, either? How about incarcerated felons? Are you going to argue that 0% of the prison population is subject to the jurisdiction of the United States?

"You seem to be unclear on the concept of "subject to the jurisdiction thereof".
It doesn't mean they can't be punished for breaking out laws."

Well, either I'm unclear or you are.
They teach what jurisdiction means starting in the first week of law school, and I was there longer than a week.
A court that lacks jurisdiction cannot punish anyone for anything, including breaking laws.

"There USB a court case that the child of a diplomat born here isn't not a citizen since the parent has no allegiance to the US."

Um no. The issue that mattered is not that the diplomat parents and their child owed no allegiance to the US, but that they were, because of diplomatic immunity, not subject to the laws (jurisdiction) of the US.

"Ian it possible to hat that the lawyyers could torture that decision to extend to people here illegally?"

No, immigrants, even those in the US illegally are subject to the laws of the US. If they weren't, ICE/INS would have no authority to detain or deport them.

"No, immigrants, even those in the US illegally are subject to the laws of the US. If they weren't, ICE/INS would have no authority to detain or deport them."

True, but at the same time, their very existence in the country would imply that they aren't wholly under our jurisdiction either, as they wouldn't have been allowed in. Legally speaking, they are the subject of their host nation and primarily under their jurisdiction.

Tourists who legally enter our nation are subject to our laws while they are here as well, but still aren't "subjects" of the US.

Can they vote? Hold office? Purchase a firearm? Be drafted? Serve on a jury? Legally receive welfare/social security etc? As pointed out by others being subject to the jurisdiction is not just about being accountable to law enforcement.

Perhaps a bit too many takes on such a frivolous threat for HnR. Maybe take the opportunity to prepare a quality longform piece looking more rigorously into the legal history of the birthright citizenship concept. I think readers would enjoy that.

The 14th has never been interpreted by the courts as to whether it requires de Solis citizenship or if de sangue is allowable. He merely has to direct his agencies, then the courts will take it up through challenges.

Exactly. I was referring to the fact that the Geneva convention provides no protections to non-uniform combatants. In other words the are outside the laws of war and do not have the protections afforded to uniformed personal. That is what always pisses me off when people complained terrorist and insurgents weren't receiving the protections of the Geneva convention. The Geneva convention specifically states terrorist, partisan and non-uniform combatants personal are not subject to protection, in essence you could do whatever you wanted to them because they are outside the law.

Yup. Frankly, that definition very well COULD legitimately be used to include organized gangs comprised of foreign nationals in the USA. Not that we need to go all Rambo on their asses or anything, but it wouldn't be much of a stretch legally.

Militia has actually been defined multiple times in statute. Additionally, as you are aware the USSC has ruled the militia clause is separate from the right to own and bear arms. However, from what I have read, the citizenship clause has very little definitive USSC rulings and none that apply to illegal aliens. Additionally, according to the authors of the aforesaid amendment, it was never meant to apply to aliens, thus the line about subject to the jurisdiction. This was to exclude aliens, including those living within the US.

Additionally, according to the authors of the aforesaid amendment, it was never meant to apply to aliens, thus the line about subject to the jurisdiction. This was to exclude aliens, including those living within the US.

It's almost like you didn't read the article before commenting because you've asserted exactly the opposite of what the article claims and cites back to the "authors of the aforesaid amendment."

Notice that both the supporters and the opponents of the 14th Amendment agreed that it secured birthright citizenship to nearly all U.S.-born children (the primary exceptions being the U.S.-born children of ambassadors and of foreign ministers). The two sides only disagreed about whether or not this sweeping guarantee of birthright citizenship was a good idea to begin with.

vs.

Additionally, according to the authors of the aforesaid amendment, it was never meant to apply to aliens, thus the line about subject to the jurisdiction. This was to exclude aliens, including those living within the US.

In short, the original meaning of the 14th Amendment has been clear since 1866. If Trump proceeds with his unconstitutional executive order attacking birthright citizenship, he deserves to be laughed out of court.

He wasn't laughed out of the election despite his economic imbecility and downright fabulist tendencies (i.e. he's a gawddamned liar), so I would hold judgment on how hard people of good conscience are going to laugh at him this time. Seems like he's immune to ridicule despite having such a thin skin.

"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States...with all of those benefits," Trump told Axios yesterday.

Which means that Trump, not for a change, lied again (I'm giving him the benefit of the doubt because otherwise he would be evidencing incredible ignorance). Many countries offer birthright citizenship to those born inside national borders. Mexico, for instance, allows a person to have dual citizenship. So does Canada, where Ted Cruz was born.

*Technically*, while it's nice Canada allows for 'dual' citizenship, it shouldn't. I know Canadian patriots/nationalists feel that way. A person is a citizen of one country. If I get an EU passport, it's as good as useless because the natives over there would never consider me one of their own anyway. I hear this with Italians all the time. 'Yes, you're of our blood, but you don't LIVE and pay taxes here'. Canadians say the same thing. 'Why do you want a EU passport when it's Canada that has protected and fed you! The EU passport is just a vainglorious thing to have."

Just stuff I've heard over the years. I applied for Italian citizenship but I didn't meet the arbitrary cut offs because my maternal side has been here too long - ie before the 1900s. Yet, I have a better knowledge and grasp of the language, culture and history than, say, Argentinians (as per my cousins who explain to me) who come in barely knowing the language and history but meet the requirements. It all feels so superficial. But whatever.

Anyway.

Also, I believe countries like Ireland, France, India and Australia knocked that angle out of their laws.

This article does not present the other side of the argument. Regardless of what you think of the policy, there is a compelling argument that the 14th Amendment only guarantees birthright citizenship to the children of legal residents and citizens. There are other discussions in debate over the 14th Amendment where both size make it clear that "jurisdiction" referred to owing an allegiance to a sovereign. Plus, if you look at the implementation of the 14th Amendment to Native Americans, their treatment supports the non-birth right to illegals camp. Again, none of this is to say what the policy should be, but to just declare that the 14th Amendment is clear and that there is no augment to the contrary is just living in a bubble.

Incorrect. Even by Trumpian standards, it really requires near-infinite chutzpah to suggest that someone can simultaneously be "in the country illegally" and not be "subject to the jurisdiction thereof..."

"Senators Lyman Trumbull of Illinois and Jacob Howard of Ohio were the principal authors of the citizenship clauses in both the 1866 Act and the Fourteenth Amendment. Senator Trumbull stated that "subject to the jurisdiction of the United States" meant subject to its "complete" jurisdiction, which means "[n]ot owing allegiance to anybody else." Senator Howard agreed that "jurisdiction" meant a full and complete jurisdiction, the same "in extent and quality as applies to every citizen of the United States now." Children born to Indian parents with tribal allegiances were therefore necessarily excluded from birthright citizenship, and explicit exclusion was unnecessary. This reasoning would seem also to exclude birthright citizenship for the children of legal resident aliens and, a fortiori, of illegal aliens."

Agree. During Congressional debate of the Citizenship Clause it was made clear that the drafters did not intend automatic birthright citizenship for all persons born in the U.S. Senator Jacob Howard, a drafter of the 14th Amendment, in floor debate said of the Clause:

"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

I came here to recommend the Claremont Review of Books debate between John Eastman and Linda Chavez that you linked to. Both sides have some decent points, but I also found Eastman's side to be more persuasive. I was particularly impressed by how his argument provided a harmonious interpretation of the Civil Rights Act of 1866, the portions of the 14th Amendment Senate debate regarding the status of Indians, and the Supreme Court's decision in Elk v. Wilkins. Eastman's position is also consistent with an 1873 Attorney General opinion (which I don't think he mentions) stating:

"The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."

The comma between the terms "foreigners" and "aliens" separates them, while the comma following "aliens" presents the conditional "who", followed by the conditions allowed.
There should be no argument that requires adding words to a quote - that renders it a separate statement, and no longer a quote of the original speaker, which should be read as stated.

If you take the opposite phrase: "and NOT subject to their jurisdiction", the meaning becomes clear. If someone is not subject to the jurisdiction then they are outside of the law. If a constituional amendment was passed that said you KevinP you are not subject to the jurisdiction of the United States, what would you take it to mean? If it meant owing an allegiance to a sovereign, then it would have been written as such.

C'mon, you can't take him seriously. Because the standards are lower for Trump.

I mean, when Obama suggested using a pen and a phone in order to do an end-run around Congress, that proved he was a tyrant and a dictator.

But Trump suggesting using a pen and a phone in order to do an end-run around the Constitution? That is just him trolling. He's just trying to seize the narrative. He's just being media savvy. He's trying to win the news cycle. He's creating the opportunity to have this issue finally litigated at SCOTUS. He's furthering the conversation on this important issue. But being a tyrant and a dictator? Pshaw! That's ridiculous! To even suggest such a thing means that you have TDS!

When Obama did something wrong, it was proof of his evil intent.
When Trump does something wrong, he gets the benefit of the doubt.

Personally, I don't think Obama was all that into the USA as it was constituted. He spoke that way. His empty rhetoric was progressive mumbo-jumbo. What the heck do you think 'transformational change' meant?

Jeff, remember that little tiff we had about you being intellectually lazy? This isn't a new argument that Trump is pushing, but has been discussed by constitutional scholars for decades. Just because you choose ignorance and intellectual laziness doesn't mean Trump has a valid argument in regards to this issue. Legal scholars do not brush this aside as readily as you do. You're proving again why I make fun of your ignorance. You're a weak minded fool.

And YOU are proving my point. Instead of screaming about how Trump is tyrannically evading the Constitution and the courts, you are justifying his actions by claiming that it's him "just making an argument". My comment wasn't about the legitimacy of the underlying rationale for or against birthright citizenship, AND YOU KNOW IT. My comment was about how his sycophants like you will justify his pen-and-phone behavior to make Trump look better than he deserves. Congratulations for proving my thesis.

Well, all things considered, THIS is exactly the type of thing the "pen and phone" was meant for. An ambiguous law, written poorly, being interpreted by the executive. That is what the executive branch is supposed to do!

Some of Obama's things were legit too, even if I didn't like them. Some were stretching it, as have some of Trump's. But Trump isn't attempting to rewrite a damn thing here, or do anything from scratch. Merely clarify an interpretation. Which is legitimate for the executive branch to do.

The legal side of the argument is unpersuasive.
The illegals are "under the jurisdiction" of their homeland. Just like the UN staff.

But put that aside.
If that is indeed the law, does it make any sense?
Woman A 1 foot south of the Rio Grande, squats and drops a baby. Woman B 1 foot north of the river squats and drops a baby. Child A is non-citizen. Child B is full citizen.
Someone explain how this is a rational framework for determining citizenship. Indeed, besides maybe one other country on the planet, who in the hell else does this? For those who want the US to be more like the rest of the world, isn't that telling you something?

This policy this author supports is basically the same system as stealing a plate in baseball. If you can creep over here, just slip into the nearest hospital (bypassing the payment desk, let's assume is standard operating procedure), bingo! You're in.

Can the author bypass the legal side and address the logical and moral aspect to birthright citizenship?

If they're not under the jurisdiction of the United States, then the United States cannot haul them into a court for punishment. Is that the result you're seeking?

(Hint: when American citizens travel abroad, they are subject to the jurisdiction of the United States by virtue of being citizens. They are ALSO, at the same time, subject to the jurisdiction of whatever country they happen to be in at the time, because of being in that country. It isn't either-or, it's both-and.)

A tourist's babies born in the U.S. will usually ALSO be citizens of the parent's country. They're like any other citizen living outside the borders, PLUS whatever treaty rights, if any, that exist between the two (or maybe even more) countries whose citizenship the child is able to claim.

So, for example, on taxes... the United States claims income tax upon its citizens, even those who live abroad... but, it generally has no jurisdiction over the income unless and until the American brings it into America. Corporations use this fact as well as individuals. It's possible to dodge paying taxes on overseas income, if one is willing to jump through all the hoops.

A coherent point of view. I do not assume that the writers of the 14th meant to encourage people to come here illegally and reward them for breaking our laws. But rewarding lawlessness is exactly what Democrats are doing here. We must assume it's strongly in their interest to do so.

I think the key phrase here would be "subject to the jurisdiction thereof." I'm not convinced by this author's argument that illegal immigrants are covered under that guidance, as proper execution of jurisdiction would have each of them jailed or deported for violating immigration law. (Whether they 'should' do that is not in question right now; it's just where things currently stand.) Seems to me that these are people not wholly under jurisdiction, so you could make the argument that the children of illegal immigrants are not covered by the 14th amendment. Children of legal immigrants - but not yet citizens - I 100% agree are covered.

As for the executive order... yes, this probably would not be a legal move by the executive branch. It would immediately be challenged and sent to the Supreme Court. But that may be the intent, because it will force the Supreme Court to interpret the 14th amendment. If Trump gets his way, he wouldn't need the executive order, because a SC ruling in his favor would amount to the same thing.

"If a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth."

The author likes to use the ploy of lie by omission. While recognizing there are limits to the clause "jurisdiction there of," they clearly leave out it is not an illogical leap to include all aliens, both legal and illegal from that umbrella statement. One of the contemporary law makers, Jacob Howard, to the passage of the 14th interpreted it as such:

"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."

Having a difference of opinion on policy doesn't make your opponent's views unconstitutional. What happened to using reason to buttress your argument instead of hyperbolic calumny?

Yeah, that hasn't been the modus operandi of any libertarian policy ever. It's been about the feels, it is only about the feels, and it will forever be about the feels. What more do you expect from hedonists, other than the demand that all and sundry be made subject to their emotions?

It all comes down to "but it's not fair" and by "fair" they mean it is not according to their tastes.

It's not fair that this man was born in the US, and that one in Egypt. It's not fair that this child was born to white parents and that one to negros. It's not fair that this child had rich parents and that one had poor parents. It's not fair that marriage has always been defined as being between man and woman.

"This will not, of course, include persons born in the United States who are foreigners"

The set of all people born in the United States who are foreigners is a null set. There's no such thing. They may be born TO foreigners, but it's kind of silly to argue that someone who's never been outside the United States is a "foreigner".

Seriously? You're going to ignore a direct statement by one of the people who worked on this at the time?

Anybody who isn't a retard understands exactly what he means. That was the understanding most people seemed to have had at the time. That it doesn't jive with your modern feelz opinion on the subject is irrelevant. They wouldn't have agreed with a great many of your opinions back then, and the reverse is also true. But it has no bearing on what they actually passed into law, which is still the on the books law.

Just as I might not agree that weed should be illegal, it is none the less on the books. Deal with it.

Actually -- our Ilya previously admitted that reasonable minds could disagree on this issue and "both sides have serious arguments," even though he of course comes down on the side you would expect. But I take this as a pretty compelling admission from a guy whose fervent open borders views usually cloud his legal reasoning!

You got short-memory syndrome, and bad.
When the progtards elect somebody, and she decides to extend U.S. citizenship to anyone who wants it, by exective order, and it's backed by a SCOTUS court decision that Presidents get to make unilateral decisions about who can have U.S. citizenship... I'm sure you'll find somebody to blame who isn't one of yours.

This is a piss-poor display of ignorance and arrogance on the part of Damon Root. He has not even read one bit of the scholarship on this issue, which is the subject of legitimate debate.

"All immigrants to the United States are "subject to the jurisdiction" of this country while they are within its borders, which is another way of saying that they must obey U.S. law or else face punishment in the U.S. legal system. "

"Senators Lyman Trumbull of Illinois and Jacob Howard of Ohio were the principal authors of the citizenship clauses in both the 1866 Act and the Fourteenth Amendment. Senator Trumbull stated that "subject to the jurisdiction of the United States" meant subject to its "complete" jurisdiction, which means "[n]ot owing allegiance to anybody else." Senator Howard agreed that "jurisdiction" meant a full and complete jurisdiction, the same "in extent and quality as applies to every citizen of the United States now." Children born to Indian parents with tribal allegiances were therefore necessarily excluded from birthright citizenship, and explicit exclusion was unnecessary. This reasoning would seem also to exclude birthright citizenship for the children of legal resident aliens and, a fortiori, of illegal aliens."

"Senator Trumbull stated that 'subject to the jurisdiction of the United States' meant subject to its 'complete' jurisdiction"

But that's NOT what he wrote down, and that's not what's in the Constitution. When did conservatives drop strict constructionism? (Just kidding... I know the answer. It's "when strict construction gives them answers they don't like.")

The point of birthright citizenship was to extend citizenship to persons who had not had it before, nor were they descended from people who had held U.S. citizenship. So OF COURSE it extends U.S. citizenship to persons who did not have it before, nor are descended from people who have it.

The point of that portion of the odious fourteenth amendment was to overturn Dred Scott, where the SC declared him a non-citizen.
The 14th became anachronistic once all followers of the Confederacy died, because it was nothing but retribution for their actions.
READ THE WHOLE THING, not just the first few words, its intent becomes crystal clear.
It took a hundred years before anyone paid any attention to it, and then it was to misinterpret its design.

Honest question: if *all* persons born in the United States are subject to its jurisdiction, as the author implies, then what is the point of including the "and subject to the jurisdiction thereof" language in the amendment?

Children of tourists wouldn't count, but illegal immigrants do? Why, exactly? Both still owe allegiance - legally speaking - to another nation. Both are expected to follow our laws while in the country and can be detained/deported if caught violating them, but still aren't legally "subjects" of the US. Seems to me the difference is only that the tourist enters legally with the intention of a temporary stay and the other enters the country illegally with the intention to stay permanently, but I can't see how that has any immediate bearing on the application of the 14th amendment.

I suspect Jacob Howard would agree that there is no difference from a citizenship standpoint.

Minor point. "and the other enters the country illegally with the intention to stay permanently" Not necessarily. I have known "illegals" who come and go only for work. I was born less than a mile from the Rio Grande and have seen this all my 69 years.

The children of tourists do count. Diplomats don't count because they're acting as representatives of their own country with diplomatic immunity and so they're subject to the laws of their own country. Tourists, instead, have to abide by the laws of the host country (the US) and so are indeed "subject to the jurisdiction thereof".

but both illegals and diplomats are immune from the ultimate criminal prohibition, that of treason. that is why they both have foreign allegiances while the green card holder who has has promised to obey all laws and in return can remain indefinitely does not. that is what is meant by subject to the jurisdiction. both the unlawfully present and the ambassador have no allgiance to the nation and thus are immune to charges of treason.

Tourists are part of the current argument at issue. Defenders of "birthright citizenship" claim that tourists are included. That's why we have the ludicrous situation of "birth tourism" and "maternity hotels."

People make money off "birth tourism" and "maternity hotels", so... surprise that some people are in favor of these things.
Also popular in other countries... sending children to the United States to obtain advanced degrees in our institutions of higher learning.

WOW. That page and the following are VERY interesting, and show they clearly WERE NOT intending the nonsense the left is pushing now. Surprise, surprise.

Some very intelligent, and HONEST, discussion in there. Stuff that we could never just discuss in public nowadays because of political correctness. But one of the interesting things that should be obvious is essentially that the people of California should have the right to exclude people moving there who have so different a way of life as to make it impossible for the natives to continue in THEIR way of life.

God, I wish more people had the kind of common sense people did back in the day. Virtue signalling progs are too much to bear...

"The Citizenship Clause was proposed by Senator Jacob M. Howard of Michigan on May 30, 1866, as an amendment to the joint resolution from the House of Representatives which had framed the initial draft of the proposed Fourteenth Amendment.[28] The heated debate on the proposed new language in the Senate focused on whether Howard's proposed language would apply more broadly than the wording of the 1866 Civil Rights Act.[29]

Howard said that the clause "is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States."[28] He added that citizenship "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons"[28]"

this is the dude who wrote the clause, speaking contemporaneously in the future tense about the clauses effect if amendment is passed:

"citizenship 'will not, of course, include persons born in the United States who are foreigners, aliens..."

On statutory construction:

"We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive."

this may qualify as a clearly expressed legislative intent to the contrary of what a ordinary reading would appear to mean.

I'm pretty sure future historians will rightly consider that act one of the main causes (indirectly though it may be) of the 2nd American civil war, and perhaps the destruction of the United States. Creating a completely divided society that has zero cohesion, and tons of perpetually warring ethnic groups, has been the main outcome of it.

If the argument is a sincere concern over constitutionality, then the problem could be easily solved - by a new amendment explictly ruling out citizenship to the children of non-citizens. I suppose the author would have no problem with that, right?

Saying that the correct path to alter a right granted in the Constitution is by Constitutional amendment used to be something the conservatives harped on. If you want to overturn RvW, write your constitutional amendment and get it passed. If you want to halt birthright citizenship, write your constitutional amendment and get it passed. If you want to make gay marriage not a thing any more... well, you get the idea, right?

First, write it down and get it through Congress. Of course, it takes a supermajority and you don't have one, so you'll have to write one that can get all of your guys on board, plus some of the other team. Get on it.

Honestly, as far as passing it through the states, since there isn't a time limit that says it has to happen within 1 week of each other or anything... I wouldn't be surprised if a fairly straight forward amendment, like one JUST dealing with birthright citizenship could in fact get through.

I've actually thought this about a number of issues where a majority of the country are in favor, but the leftists absolutely hate. More red states than blue, and I think a few blue states might be able to sneak through moderate things most people like everywhere.

I think the real reason this has the globalist faction shitting their pants is that it paves the way for revoking citizenship to those whom it was improperly granted. And keep in mind, where the US goes many nations follow.

Follow my reasoning and legal minds here please comment. If the 14th Amendment is found to disbar the children of illegal aliens then you can revoke citizenship granted on the old standard as no new law was passed. And this is a telling lesson in allowing judges to legislate from the bench.

In this case, it would merely be a correction to a lack of previous guidance on the issue.

This is specifically made more damming, because previous ruling specifically granted citizenship to legal aliens. In turn this implied illegal aliens were not entitled to the same benefit.

If followed to it's logical conclusion this could allow for the deportation of ten's of millions.

No. If the 14A does not require citizenship for children of illegal aliens, this does not mean that children of illegal aliens cannot be given citizenship. Congress may still do so. Revoking citizenship may be possible in some circumstances, but likely not as to all of the existing children of illegal aliens (which, by the way, may be as high as 9% of all births currently occurring in the US and more than 300,000 per year).

But this would still be a big problem for a "globalist" because their only long term chance at success is to replace Americans with immigrants who are more receptive to their transformative agenda.

I had the same thought... But also realize Trump should VERY MUCH not even mention such a possibility.

It would not bode well for getting this pushed through SCOTUS. If this goes through SCOTUS, he could bring that new fact up, and then perhaps GRACIOUSLY grant citizenship to all people who were born here to illegal immigrants saaay 25 years ago or more, and fuck all the more recent ones. Or use them as leverage to get other laws passed. Or maybe give them permanent residency with no voting rights! There are a lot of options on what to do with such a ruling.

I think the US can MAYBE survive the political problems caused by the wave of Hispanic immigration we have taken in until now... Although it's clearly fucked up the country beyond all belief, shifting us considerably to the left... But NOT the future wave that they're shooting for. People who don't see this are morons. Principles be damned, if open borders destroys all other freedoms, it's just not worth it. And that is the clear outcome we're seeing here, total disintegration of all traditional American ideals.

Senator Jacob Howard served on the Senate Joint Committee on Reconstruction, which drafted the Fourteenth Amendment to the United States Constitution. In 1866, he wrote about the intent of the 14th Amendment:

"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."

I am not a fan of Trump making this change via executive order, but think there is room for debate about this issue.

For those looking deeper at what "allegiance" means and the basic principle at operation here, see this:

Testimony before the U.S. House of Representatives, Judiciary Committee, Subcommittee on Immigration, Border Security, and Claims (Sept. 29, 2005) contends that the Citizenship Clause of the 14th Amendment has been misconstrued as mandating birthright citizenship. Rather, the clause was a codification of the 1866 Civil Rights Act, which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power - i.e., those who were in the U.S. only temporarily (and particularly those who were in the U.S. illegally). This was the understanding of those who drafted and those who ratified the 14th Amendment, and was confirmed by the Supreme Court in the first two cases to address the clause. In 1898, the Court reversed course, though, holding that the Clause mandated birthright citizenship, resulting in a repudiation of the principle of bilateral consent as the foundation for citizenship.

Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."* Thus, "subject to the jurisdiction" does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S...

The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone's Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of "birthright subjectship" or "birthright allegiance," never using the terms "citizen" or "citizenship." The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a "debt of gratitude." According to Blackstone, this debt is "intrinsic" and "cannot be forfeited, cancelled, or altered." Birthright subjectship under common law is the doctrine of perpetual allegiance.

"America's Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that "the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved." So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain."

Of course, once this election oriented smoke screen dissipates, the true solution, elimination of chain migration, will seem more benign. Sure, make the baby a US citizen. Dump them into state custody and deport the parents. I suspect that the lack of a free ride on baby will reduce the number of mothers willing to break the law in order to abuse the law. Pass a law that anyone whining about 'breaking up families' is presumed to have volunteered to adopt one of the new citizens, and to accept full liability for their actions over the next 18 years.

In the case of the current press focus 'caravan', since they have refused the Mexico offer, they clearly are NOT refugees. Therefore the US can be printing up the refusal of asylum papers now, with the names blank. As soon as they cross the border, hustle them in front of a judge, find out their name, fill in the paperwork, sign it, and herd them onto the next C130 going south.

Or just declare them enemy combatants. Surely there is at least one knife in the bunch. That takes care of posse commitatus.

"I suspect that the lack of a free ride on baby will reduce the number of mothers willing to break the law in order to abuse the law."

Yeah, thing is, if mom is or was in the U.S. illegally, she has to leave, and be out of the country for at least ten years before she can come here legally. So, since the lack of a free ride is already the law we have, you can celebrate!

"In the case of the current press focus 'caravan', since they have refused the Mexico offer, they clearly are NOT refugees. "

This doesn't even make sense. Here's the breakdown:
1) I am a hypothetical poor person fleeing poverty and lack of economic opportunity in my homeland. Plus, there is severe oppression by criminal drug cartels.
2) Say, why don't you settle here, in this land of poverty and lack of economic opportunity, which is also severely oppressed by criminal drug cartels.
3) No? Then you can't possibly be fleeing poverty and lack of economic opportunity, or oppression from criminal drug cartels!

A country being NOT super wealthy IS NOT an excuse for seeking asylum. If it were, then 90% of the population of the world would be eligible to move to a small handful of European and Asian nations. That's ridiculous.

As for 2., as much as WE love to trash talk Mexico, because it is such a shithole RELATIVE to the US, the most affluent large country on earth... Mexico is in fact one of the wealthiest and most prosperous nations on earth. It's kind of like if somebody bitched about being forced to "settle" for living in a random neighborhood in San Francisco, versus being able to live in Beverly Hills where it is clearly far nicer.

Bullshit argument, on top of bullshit argument. If they really think they need asylum, and MUST get out of Central America at all costs, Mexico is a MASSIVE step up.

change has to start somewhere but just because you don't like does not mean its an attack. Attack is violence that you are attributing to something that is not, change is an act of violence. Reason promoting violent rhetoric which is the false news everyone talks about

Common Law argues that citizenship is perpetual. If you're born in London you're Brit forever. However America stepped away from Common Law because of the War of 1812 and argued that citizenship is a "mutual relationship" that requires mutual consent for citizenship. If a person wants to leave he can.

If that's true that then the reverse must be true that if the US does not consent, then the person is not a citizen.
Wording of the 14th Amendment talks about 'jurisdiction' etc. but it doesn't clarify consent any more than it clarifies jurisdiction.

Well an invading army isn't subject to the jurisdiction of the United States, but what about POWs? And if a person enters the country illegally and stays under the government radar, are they "subject to the jurisdiction thereof"?

The fact that a bunch of 2nd and 3rd world countries that all share the same language and culture for the most part, that don't have many people wanting to move there from far flung places, doesn't mean much... There's a reason that almost every country in Europe that did have it shit canned the idea once it became easier for people to hop around the globe more easily. People just didn't travel 10,000 miles on a whim back in the 1800s, now that they can... It's a horrible idea.

Except that's not true in a LOT of instances, even going way back. They had basic standards of health, people not being criminals, etc. MANY people were turned away.

But even if nobody had been turned away, the idea that something that worked when 90% of people did manual labor is STILL a great idea in a post industrial economy... Well it's not a sure thing. And I think most people realize in their gut that letting in tens of millions of half illiterate people from 3rd world countries IS NOT going to improve things in a 1st world nation.

The funny thing is, the Democrats contradict their own narrative when they, correctly IMO, harp on natives for not getting educated enough. Sooo not getting some kind of useful degree or certification makes a native born person a bad person, who is bad for themselves and the country... But an illegal immigrant from Mexico who has an 8th grade education on average, they're somehow SUPER AWESOME. Uh huh.

I love how the subtext here is that, this is yet another issue that Congress, in spite of being in control of both houses of Congress, is impotent to solve, as is there duty to do - another 'BamaCare fiasco to throw on the pile.

This has been a very interesting conversation but I fear that you folks are missing an important point: The US Constitution is a living, breathing document that must grow and change with the times and popular sentiment.

When the 14th Amendment was passed, there wasn't a problem with illegal aliens. Now there is. Therefore, the 14th can't mean that the children of illegals are citizens because that would be a bad result. QED.

So does the same logic apply to the 2nd Amendment? At the time it was drafted, firearms consisted of muzzle loading muskets...they didn't have a problem with people shooting dozens of people with an AR-15. And since the Constitution is a "living, breathing document that must grow and change with the times and popular sentiment", I suppose the president can ban the sale of AR-15s through an Executive Order.

This is an argument that has been going on almost as long as the 14th-A has been on the books.
Perhaps now, we'll finally get a respectful hearing before the Robed Wonders and a ruling that will settle the matter -
in the same manner as Heller has settled the Individual/Militia argument on the 2nd-A.

So a woman, a Filipino, and her husband come to the US on a 90day visitor's visa... she is not even pregnant when they arrive. They like being here and decide to stay..... then after their first month of their LEGAL visit they conceive a child. They have two more months on their documents. Having been granted legal permission to BE here for a period of time, they are "subject to the jurisdiction of the UNited States and whatever state they happen to be within. How about on day 91, when their lawful presence here has terminated, per the "contract" they made with INS? Day 92? Maybe day 250? ARE they still "subject to the jurisdiction thereof"? I say no, and so does the law. That word "subject" means under the full authority of.. and someone here illegally is NOT in that status. He is UNDER the jurisdiction, and thus can be prosecuted for breaking our laws. He cannot vote, legally work, join the military, enter into certain types of contracts, he cannot purchase firearms or get a Mother May I Card to carry one about upon his person in public, he cannot pay income taxes or pay into Social Security, he cannot get Medicareget a driving license in most states, instead all the ID, documentation, passport, foreign driving license, etc, from the Philippines are honoured here.... UNTIL they overstays their visa. Their child, once born here, is certainy NOT a US Citizen, because his PARENTS were not "subject to the jurisdiction" of any state nor of the USA.

"How about on day 91, when their lawful presence here has terminated, per the "contract" they made with INS? Day 92? Maybe day 250? ARE they still "subject to the jurisdiction thereof"? I say no, and so does the law. That word "subject" means under the full authority of.. and someone here illegally is NOT in that status."

A person who is not subject to the jurisdiction cannot be required to come into court for any reason.
So, for example, I am not a resident of New York, nor am I physically present in New York, nor is any of my property currently located in New York. So I am not subject to the jurisdiction of New York.
Now, if I drive into New York, I become subject to New York's jurisdiction. New York's government authorities may stop me if I violate New York's motor vehicle laws, and they can require me to show up in court to answer any criminal charges that may result.

"...he (Trump) deserves to be laughed out of court." The problem with Unconstitutional gov actions is two-fold. 1. They are enforced immediately and relief may come years or many decades later or not at all. As one Supreme Court Justice noted: "Justice delayed is justice denied." 2. Illegal enforcement and injury are not punished.

How is this a "check & balance" of on gov power? The victims get no compensation or relief and criminal authorities are not even indited. This is the real result of coercive "law & order".

What could be more unjust and chaotic? We are told that would be a voluntary gov based on reason & rights. But we can't test that claim because the authoritarians won't allow it. "It would be chaos."

And the populace takes their claim on faith. They have to. All evidence contradicts it.

I do not agree that this should be changed by executive order, but the president has stated that he expects this to be immediately challenged and eventually send to the supreme court where this issue can be settled. That I agree with. Apparently the author of this entry did not understand the nuance of what's happening here. There is some legal support for what the president is trying to do, even if you don't agree with that concept. I would've hoped that reason would have explained both sides of the argument, i.e. the legal justification that the president is using for his action. But I guess that was too much to expect.

Code: Is it "too much to expect" that the executive branch enforces the law and not try to overturn it? I can break the law to challenge it, as a citizen, and that is the American way. But I am not paid to uphold it, nor did I swear allegiance to the Constitution. I was kicked out of 3rd grade because I refused. At 76 I still refuse to obey laws that are immoral, unjust and violate my rights.

Root and some commenters don't understand "and subject to the jurisdiction thereof".

In Steel Co. v. Citizens for a Better Environment (1998) the court said "jurisdiction is a word of many, too many, meanings." Therefore, it is important to discover the operational meaning behind "subject to the jurisdiction" as employed under the Fourteenth Amendment rather than assuming its meaning from other usages of the word jurisdiction alone. Both Sen. Trumbull and Sen. Howard provide the answer, with Trumbull declaring:

The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.

In other words, it isn't local jurisdiction the Fourteenth Amendment recognizes but only the lack of owing allegiance to some other nation because the United States only recognizes those who are 'true and faithful' alone to the nation. As will be explained shortly, only acts under the laws of naturalization can remove an alien's allegiance to some other country under United States law

The interpretation of the 14th amendment cannot be overturned by the Supreme Court. The amendment is as clear as glass. If a family from England is vacationing in Disney World, and the Mom pops while visiting, is the child a US citizen? No, and nor would the parents care particularly. Can John McEnroe be President (not that I would want that...only a slight upgrade from Trump)? He was born in Germany, and our country requires citizenship from birth for the highest office. Or as Ronald Reagan put it: "America is a shining city upon a hill whose beacon light guides freedom-loving people everywhere." Funny how the faux conservatives rarely mention his name anymore. Why, because certain people hate Mexicans enough to suggest that building a 2,000 mile wall is a good idea. And, these people DRIVE Trump. MAGA and all.

" because certain people hate Mexicans enough to suggest that building a 2,000 mile wall" NO! I was born less than a mile from the Rio Grande almost 70 years [as of 11/13] ago, have ALWAYS loved "Mexicans" and KNOW because I still live in Texas, that "RECONQUISTA" is still the objective of TOO many. THEREFORE I demand a wall & restricted immigration to protect the U.S.A.!!!

I'm part Mexican, grew up in California for the first half of my life... All I can say for you morons that DON'T live in areas that have been effected by LARGE scale illegal immigration, it fucks up the world. You just haven't ever lived through it.

You might think the fact that you see 5% of your area turning Hispanic is fine. And it is. But try going to places that went from saaay a 90% white/black mix in California, with a sprinkling of Hispanics, Asians etc 40 years ago... To 90% Hispanic alone now. These areas are NOT the better for it. The voting patterns of these people destroyed the most beautiful and amazing part of the entire country, California. And are doing the same elsewhere. Many cultural and crime problems have come too. Keep in mind Hispanic Americans are the 2nd most criminal ethnic group after blacks, responsible for more than double their per capita numbers of murders and other crimes.

I don't have a problem with any specific Mexican. But by the 10s of millions, being almost entirely from the lowest classes in Mexico, they have made MASSIVE real world problems. It's basically like how a single paper cut doesn't really do any harm to a person... But if you got 40 million paper cuts, you're fucked.

"I'm part Mexican, grew up in California for the first half of my life... All I can say for you morons that DON'T live in areas that have been effected by LARGE scale illegal immigration, it fucks up the world. You just haven't ever lived through it"

Or... and I want you to really stretch your mind for this... some of us HAVE ever lived through it, but didn't perceive anything like the same results you did.

Well, I suppose my family just wasn't rich enough growing up to avoid all the problems created by it! We were just middle of the middle class after all. Don't worry, it's a common problem people have, not recognizing problems they don't directly have to deal with the repercussions of.

See, I had to go to overcrowded schools that had as many as 35-36 kids in some of them. Constant harping about there not being enough money for supplies (paper, scissors, etc), while they had ESL classes funded out the ass. I had to deal with Hispanic gangs at my school... Where not a single saaay white or Asian kid was involved in a gang, period. Keep in mind this is in what had been a perfect slice of suburbia not but 40 minutes or so from SF when my dad grew up there... Transformed for the worse by mass immigration.

The poverty rate in California sky rocketed. Hispanics overwhelmingly vote left, which is why the state is in such piss poor financial shape, has insane gun laws, and every other type of nonsense imaginable. Native Californians poll COMPLETELY differently on these things, and it drove most of the sane ones like my family away decades ago. White shit libs from the east coast helped ruin it in this regard too though in all fairness!

Look, people like my parents, grand parents, and other native born Americans, AND legal immigrants, were out there busting ass, and paying shit tons of taxes... That's supposed to fund basic government services. Back when we WEREN'T flooded with 10s of millions of low skill immigrants, we actually managed to fund government with lower taxes, while taking on less debt. But once you throw in 10s of millions of people who are net negative tax contributors, AKA leeches, it fucks everything up.

That my family was paying out the ass to get inferior services compared to what they paid for, just because shit bag leftists politicians wanted to bring in more leftist voters, is fucked up. Those people should have all been shipped the fuck home, and then the taxes paid would have actually been enough to cover basic crap like schools, roads, etc. Importing all these poor, unproductive people IS WHY America can't cover basic infrastructure anymore.

And it's not right to put that burden on the productive native born people just because tool politicians either want the votes or the cheap labor. Not to mention it has destroyed the culture and cohesiveness of our nation. You're just a fucking idiot.

Crime rates have skyrocketed in every area where they were replacing a group other than blacks... Did I forget to mention the problems the blacks have had getting pushed out of their areas too? They aren't too keen on this themselves! Not to mention that the general culture in much of California is now that of another country, and NOT America. I could go on for days. Why do you think California, the most beautiful place in the country, has been seeing a net out migration? A solid majority of the reasons are directly because of the effects of mass migration to there in such high numbers, and specifically those people mostly being low/no skill immigrants from dysfunctional cultures.

You can just hand wave all that shit away if you want... But IMO anybody that does is short sighted, delusional, and an idiot. Rome took in plenty of barbarian Germans over centuries, and Romanized a lot of them. But when the flood gates opened up too much after German invasions, Romans became BARBARIAN, instead of turning barbarians into Romans. It's a thing dude.

If you're not so old you die too soon to see the full effects, you will see that people like me with common sense are correct about the stupidity of mass immigration as it is done today.

"Why do you think California, the most beautiful place in the country, has been seeing a net out migration? A solid majority of the reasons are directly because of the effects of mass migration to there in such high numbers"

Wow. In just the time it took to finish one sentence and start another, they went from mass migration TO there in such high numbers, to net out migration? It's almost like you can't make up your mind.

See in the 80s, 90s, and early 2000s illegals were flooding into the state... Native born Americans starting having to bear the brunt of that in taxes, bad voting habits of those given amnesty by Reagan, entire cities turning to 3rd world toilets, etc. They started leaving. The smart ones started getting out by the 90s, but overall net migration into the state remained positive until the mid 2000s. But they TYPES of people moving in/out changed.

Middle class and successful people used to move there back in the day... They all stopped moving there on net a long time ago, and have been bailing. Poor idiots and illegals kept moving there for awhile. But by the mid 2000s, even they weren't enough to keep it net positive. So now it's net negative overall, AND it's still mostly successful people leaving, and low skill morons moving there.

Replacing 10 middle/upper class skilled workers with 8 impoverished unskilled workers DOES NOT make for a healthy society or economy. California is feeling the pain, and even what success Silicon Valley is still having will not be enough to keep it afloat for long... And that's if those big tech companies don't get smart and dump that hell hole too.

Illegal aliens owe no allegiance to the United States, and therefore are not subject to the jurisdiction of the U.S. government. When American authorities arrest or detain a foreign national, that foreign detainee has the legal right to confer with their nation's consulate, and their nation's consular officials have the legal right to demand access to said detainee. That is because they owe their allegiance to the nation of which they are a citizen, and their nation in turn is obligated to protect the interests of its citizens.

THIS. I have said this on the jurisdiction bit too. This is a KNOWN fact, it's not a secret that people accused of crimes abroad try to get out of it via their actual governments all the time.

There's just so much fraud on the other side of this argument it is insane. It's the same amount of mental gymnastics required to believe the lefty interpretation of this as it is to believe their reading of the 2A.

"Have you paid ZERO attention to any of the quotes from the people who wrote the fucking thing?"

There's exactly ONE quote that has any relevance... the text that was ratified.
The text that was ratified grants birthright citizenship. This has been understood since ratification. Ask any person of at least normal intelligence, but also with enough patience to handle your obstinance, to explain it to you as many more times as it takes..

The 14th Amendment was written to counteract the infamous Dread-Scott decision of the Supreme Court. It was never intended to apply to children whose mother is in the United States illegally. That is clear in the discussions before it's ratification. To state otherwise is to lie by omission.

The courts have never taken up the issue to my knowledge, and it has never really been challenged until recently when illegals started sneaking into our country to have their children then exploiting our other lax laws such as 'chain-migration' to bring in the rest of the family.

President Trump will not try to cancel the 14th Amendment with an Executive Order or Memorandum as many are claiming. He can use them to tighten up some of our lax regulations though. He might issue an EO or EM that excludes children born to illegals from 14th Amendment citizenship, or perhaps exclude their perceived 'right' to be 'anchor babies.'

Those questions will have to be settled in court, most likely in the Supreme Court possibly years from now.

Whatever President Trump's EO or EM says there is sure to be an instant challenge in at least one court somewhere if not dozens, with all his opponents wanting to have their name on the case that defeats it. They will be playing into his hand.

At the very least the discussion has finally begun, and it will be settled in the courts.

I'm no lawyer, but with a century and a half in place, I'm betting the matter was settled already. We'll be digging up things from Grant on in the coming weeks to rediscover both the arguments of the day and a pile of case law that simply has been ignored by the textbook racket. Judges likely need to restrain themselves from trying to plow the same ground - the temptation to be the 'smartest man in the room' is a weakness [check Newts last run at the presidency for a good example of what not to do].

Most of us never really look at the 14th, as anything over a century old tends to get coated with assumptions. I went back to it for a head check and one thing is patently clear: it has a context, which is to secure the full rights of citizenship and birthrights of former slaves. Why? Because various states and municipalities were busy undermining the 13th with their own statutes. So the 14th was a correction to the problem. It stood properly until sometime in the 60s where it was indeed illegally amended from within the bureaucracy of the executive branch. When diplomats, tourists and people on work visas aren't allowed to declare their own offspring citizens by virtue of [invited] entry to the US, it makes no sense to allow people to gift their children citizenship when they have no standing themselves. Try going to any other country in the world and playing the same game: your child will leave with you pending your temporary visa expiring or deportation action. Some don't like it, but Trump is restoring the 14th, not assaulting it, and speaker Ryan apparently has never read it.

"When diplomats, tourists and people on work visas aren't allowed to declare their own offspring citizens by virtue of [invited] entry to the US, it makes no sense to allow people to gift their children citizenship when they have no standing themselves."

2/3 of your list are allowed to produce US citizen children by birthright. Diplomats is the only excluded category.

"Try going to any other country..."

The 14th amendment is the result of our (painful) history dealing with the aftermath of slavery. Other countries had different experience with doing away with slavery (or didn't have it in the first place) and so didn't have to solve it the way we did.

Who decided that children born to diplomats and invading soldiers are not automatically citizens? How about children born to persons vacationing here on a tourist visa? If diplomat children born here are not US citizens because they are subject to a foreign jurisdiction, why can't a child born to a Guatemalan mother who came her illegally be denied citizenship for being under the jurisdiction of its parents' legal residence in Guatemala? Can a person be subject to the jurisdiction of two or more governments at the same time, or is that mutually exclusive?
I don't believe this rule can be implemented by mere executive order, but I think Congress could adopt it.

"Can a person be subject to the jurisdiction of two or more governments at the same time"[?]

Yes, as any resident of any U.S. state can tell you, since they do so pretty much every minute of every day (state and federal jurisdiction). Americans who travel overseas are subject to the jurisdiction of whatever nation(s) they enter, while all the time still being subject to U.S. jurisdiction. You can even be charged, and convicted, in a U.S. court, of some actions you took overseas while in a place where what you did wasn't illegal under their law.

Hi, PH. You're still my go-to brain when I have questions about the Constitution. And thanks for that! SO, Trump has announced his intention to rid us of "birthright citizenship" by executive order. Says "they", meaning the Congress, have advised him that he needn't wait for congressional action to rid us of bc. What's your take on this. I understand the power of the oath of office, but I had also understood that in such cases as bc and other immigration matters in general Congress must take action; that an executive order alone doesn't cut it. What's your take? Thanks!

Just read an article over at the 10th Amendment Center by one Michael D. Ramsey, law professor (color me suspicious already) anyway here is what he said which I know is BS: "U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial
jurisdiction. Nor is there any doubt that such children are governed by U.S. law at the moment of their birth. Thus they are "subject to the jurisdiction" of the United States at birth. As a result, the text's original meaning grants them U.S. citizenship at birth."

As I understand it, the children of illegal aliens are subject to the jurisdiction of the country which they are citizens and their their children even born here on US soil are citizens of the parents country.

Just read an article over at the 10th Amendment Center by one Michael D. Ramsey, law professor (color me suspicious already) anyway here is what he said which I know is BS: "U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial
jurisdiction. Nor is there any doubt that such children are governed by U.S. law at the moment of their birth. Thus they are "subject to the jurisdiction" of the United States at birth. As a result, the text's original meaning grants them U.S. citizenship at birth."

As I understand it, the children of illegal aliens are subject to the jurisdiction of the country which they are citizens and their their children even born here on US soil are citizens of the parents country.

"As I understand it, the children of illegal aliens are subject to the jurisdiction of the country which they are citizens and their their children even born here on US soil are citizens of the parents country."

Yes. Jurisdiction is not exclusive, and more than one can apply. For example, when Americans travel overseas, they are subject to the jurisdiction of the countries they enter, and remain subject to U.S. jurisdiction the whole time. To use a different variety, persons in the U.S. armed forces are subject to the jurisdiction of the UCMJ. When they are off-post, they are subject to the jurisdiction of the state they happen to be standing in, while remaining subject to the jurisdiction of the UCMJ. So when a soldier or sailor gets drunk and busts up a bar, they can be charged with a crime in town and then get hit with a court-martial when they get out of the town pokey.

You seem to be under the impression that if someone is subject to one jurisdiction, they cannot be subject to any other jurisdiction. This is not how it works.

If this were true, the U.S. would have no authority to haul any of them into court... any court... for any reason. Oh, you robbed a liquor store at 3rd and Main? We'd prosecute you for that, but we lack jurisdiction over you because you're an illegal. or aha, we caught you working in the U.S., even though you're here illegally. We'd prosecute you for that, and have you removed from the country, but we can't, because we don't have jurisdiction. See you Monday morning!

Assuming this is NOT the condition you'd prefer to see, I'd suggest you stop arguing that illegal immigrants are immune to US jurisdiction.

I would imagine you are correct as far as "legality" is concerned, my problem is the "founders" INTENT!!! I go by the sayings of Christ in His thoughts on the scribes [Today meaning LAWYERS!] and what they do. The 14th Amendment was a "countermeasure" to the post- Civil War's SOUTH "Black Codes." Yeah sure, but would they and MORE SPECIFICALLY The Founders, have had no problem with what we see today. For example, the "infamous" places of the West Coast that were actually the focus of FBI stings because they were specifically for Chinese to have an American CITIZEN BABY??? Or would the Founders have had a problem [The answer is a resounding YES!] with unlimited, OR ANY, immigrant muslims having AMERICAN children, when they were ALREADY fighting those from "the shores of Trripoli!" This nation, if it is going to survive these ORGANIZED INVASIONS, needs to do something fast!!!

At least as far as citizenship. You had to be a white male of good character to be a FULL citizen, with voting rights and all other protections of law. Women were obviously allowed "partial" citizenship as well. You clearly don't know shit about shit from a lot of the stuff you've written in this thread.

Sorry, I was simply pointing out how you were WRONG in terms of granting citizenship. They denied it to a majority of people, including those they did allow to come here and work or whatever. They also wouldn't allow in PERIOD people from many places in the world, because they deemed them unacceptable and incompatible with living along side them.

The founders were AMAZING on lots of stuff, and wrong about some other things. You don't need to pretend they were nice about everything like a modern prog would be. Jefferson thought blacks were inferior, and smelled funny, BUT that they should be freed, and sent back to Africa. That's not a simplistic view that people today would want him to have, but it's the truth.

Immigration without citizenship would in fact fix some of the problems a lot of people have with mass migration... But we'd need to end this bad interpretation of birthright citizenship along with. If people weren't popping out kids who got auto citizenship, I'd be a lot more okay with letting in low skill seasonal workers en masse if actually needed etc. But the open borders uber alles crowd rarely ever wants to talk about sane policy compromises.

Jesus! I haven't been arguing with a Hihn sock have I??? If so he's got better about changing up his style, and not sneering! It would make sense, since he is coming back and responding to almost every response I made with a vacuous retort. Most people just don't go through that amount of effort!

I think it is the biggest mistake the authors of the Constitution made and if given the chance I do believe the people in the states would vote it away. I don't think an EO can do it but I wish it could.

If it could, then an EO could undo it, too. Or even change the law the other way. If President Leftwing gets elected, they could write an EO that every immigration officer is furloughed until further notice, and anyone who wants to come can come and stay.

If immigration policy could be set by EO. You SURE that's what you want?

He's changing an interpretation of the law. That is EXACTLY what the executive branch is supposed to do. When unclear, they interpret laws and enforce them. That is the entire point of the executive branch.

If he was declaring that no gingers could become birthright citizens, something clearly NOT in the law, THAT would be him changing the law. But he is not doing that.

How can some of you people be so dense? At the end of the day it will all come down to what SCOTUS decides, and I will have my fingers crossed on this one. This change could be one of the best things to happen to the USA in MANY decades.

" This change could be one of the best things to happen to the USA in MANY decades."

Republicans talking about removing birthright citizenship but not actually doing anything that could achieve that goal is not a change. It's been around for a very long time. suckers keep falling for it... that also is nothing new.

Nice job of completely ignoring my point. There is no change in the law needed. If the intepretation that has been used this whole time is WRONG, we can simply change it. As happens in damn near every single Supreme Court case ever. STFU and GTFO.

BTW, are you a Hihn sock? If so stick to this one, it pretends to be a least a little more sane than most of your others.

International law already covers it... And people without a country ARE NOT OUR PROBLEM. We can just boot them out to wherever will take them. Or lock them up forever, who cares, there are so few people it applies to it is irrelevant.

We can address the issue in greater detail IF it ever becomes a problem. Historically citizenless people have been very rare. If there ends up being a ton of them somehow, which BTW is basically impossible since most people born to citizens of a certain country get or can get citizenship easily, we will just deal with them via kicking them out, or locking them up, or MAYBE even granting them asylum, as seems appropriate.

Root can hold the hands of the crying democRATS when the President does it. Totally wrong on his interpretation, the originator said it did NOT apply to what we now refer to as aliens, "subject to the jurisdiction thereof" meant you were NOT a citizen of another country and refers to the fact if you were a citizen of a US state then you were a citizen of the U.S. and entitled to Constitutional protection in all states. It was enacted to set aside the Dred Scott decision which southern states were using to deny rights to former slaves. Liberal administrations used the broad definition to give benefits to aliens and illegal aliens and President Trump will be within his right to set aside any executive agency action which was put into place by prior administrations. 30,000 anchor babies in 1980 is close to 300,000 every year now (7% of U.S. births) and there are people who pay thousands of dollars to "visit" the U.S. to give birth, return to their own country after the baby gets a passport and the kid returns to the U.S. for college (on a US Ride) and at 21 gets to sponsor their parents for citizenship. Hold onto your hats Rino's and RATS, the swamp is being slowly drained.

"Root can hold the hands of the crying democRATS when the President does it."

And for about five minutes after, which is about how long it'll be before a court invalidates it.

" refers to the fact if you were a citizen of a US state then you were a citizen of the U.S. and entitled to Constitutional protection in all states. "

No, genius. It spells out that birthright citizenship provides both federal citizenship and state citizenship, to keep the Southern legislatures from deciding that all those free black people walking around might be citizens of the United States, but they were absolutely NOT citizens of the state.

" Liberal administrations used the broad definition to give benefits to aliens and illegal aliens"

There's literally nothing in the definition of birthright citizenship that gives benefits to aliens and illegal aliens, nor is anyone using the definition of birthright citizenship to give any benefits to aliens and illegal aliens.

This may be one of the greatest achievements of the Trump presidency if this wins in the Supreme Court.

All of you purist libertarians who believe in open borders have lost your minds. You think we can become a nation where 30% of the population was born abroad (where we may be heading in a couple decades by some estimates) and STILL maintain our freedoms, and our culture. You're dreaming!

Our voting patterns, and our love of freedom comes FROM our culture... Not the other way around. It is not surprise that the most un-American changes in our nation have happened during times when we reached peak Fresh Off The Boat Immigrant. FDR won because of the immigrant vote, and leftists have been taking over huge chunks of the US today because of the immigrant vote.

Look up the difference between how people vote that have been here for saaay 3 generations even versus 1st or 2nd. The people that have been here for awhile BELIEVE in American ideals overwhelmingly, including many Hispanics in Texas/California etc. Newbs do not. Therefore the level of Newbs needs to always be kept in check. Open borders just don't work the way some people think they would guys, sorry to break it to ya.

On another note: It REALLY pisses me off when one goes and reads the intent of law makers in the past when they drafted the constitution, the amendments, other laws... Usually their intentions are crystal clear, stated repeatedly publicly, and were generally understood by people of the time... But they worded so much of it ambiguously, or just outright poorly. It is infuriating, because it has allowed disingenuous people (mostly commies) 100, 200+ years in the future to ignore their clear stated intent, and argue things that should be cut and dried. And almost universally in directions that screw the country up to boot.

Of course pols do this today too, but it is just a BS practice. Write your shit clearly! Get it passed, or don't. Don't write laws that COULD be interpreted 500 different ways and depend on the court to declare it to be one thing or another.

I don't agree that people who have been here longer believe in American ideals more. Maybe immigrants who didn't come from communist countries. Cuban and Russian escapees are majorly against socialism, but look at their kids. They are brainwashed in public schools to be as 'American' as any other ignorant unappreciative kid.

Cubans are the only ethnic minority group I have ever seen proven via studies to actually be in line with mainstream American ideas of government. I would however imagine former USSR people are as well, and maybe even a few others. That is because of strong self sorting, and the sheer level of crazy they were leaving I would imagine.

However on average, every immigrant group to the US is far to the left of native born people as per every study/survey ever done. This even includes fresh European immigrants! This is because our CULTURE instilled many of these beliefs in us, in the past because of government indoctrination in the right ideals... And in recent decades DESPITE government indoctrination in the wrong ideals.

It amounts to this: American culture is the most freedom oriented on earth. Therefore, on average, people coming here from anywhere else will be less freedom oriented. Simple as that. Therefore, we should limit how many such people we take in at any given time so that they can't sway things in a bad direction politically.

I wish every immigrant was a hardcore libertarian! But they're not. Ignoring reality doesn't change reality. You must adapt to the way the real world is, and if one wants to maintain freedom, that means not bringing in floods of people who are opposed to it.

We do oppose the welfare state. But many libertarians support the Constitution, either as a step in the right direction, or the supreme law of the land, or as a useful check on even bigger government. And to say the president can override the Constitution he took an oath to uphold makes no sense as political strategy.

But if he's not overriding it... Which he's not here, just differing in interpretation of what the law says... Then that's perfectly within his powers as the chief exec. How is this hard to understand???

" All Libertarians should strongly support Trump on this. Why? Because citizenship enables immigrants to exploit the welfare state (more so)."

This is dumb, on many levels.
First off, Libertarians who value rule of law want the law to be changed in ways that are legally sound. In this case, the Constitution provides for birthright citizenship. That isn't something the President can overrule. To remove birthright citizenship from the Constitution requires a Constitutional amendment.
Second, Libertarians value freedom. Favoring a restriction of freedom is not something Libertarians "should" do.
Third, your logic is poor. If Libertarians are categorically opposed to welfare state (a fact not in evidence) then they should strongly support peeling back the welfare state for everybody, not for just a persecuted class of people.
Fourth, the swinging pendulum. If you support the idea that President Trump can override the Constitution on this issue, you also support the idea that future Presidents can ALSO override the Constitution on this issue, and others. So when future President Commie Leftstooge issues his open-borders Executive Order, it would be as valid as Trumps' order today. I vote that Presidents don't have the power to override the Constitution, on any subject, ever. If you want to change what the Constitution allows the government to do, pass an amendment.

" All Libertarians should strongly support Trump on this. Why? Because citizenship enables immigrants to exploit the welfare state (more so)."

This is dumb, on many levels.
First off, Libertarians who value rule of law want the law to be changed in ways that are legally sound. In this case, the Constitution provides for birthright citizenship. That isn't something the President can overrule. To remove birthright citizenship from the Constitution requires a Constitutional amendment.
Second, Libertarians value freedom. Favoring a restriction of freedom is not something Libertarians "should" do.
Third, your logic is poor. If Libertarians are categorically opposed to welfare state (a fact not in evidence) then they should strongly support peeling back the welfare state for everybody, not for just a persecuted class of people.
Fourth, the swinging pendulum. If you support the idea that President Trump can override the Constitution on this issue, you also support the idea that future Presidents can ALSO override the Constitution on this issue, and others. So when future President Commie Leftstooge issues his open-borders Executive Order, it would be as valid as Trumps' order today. I vote that Presidents don't have the power to override the Constitution, on any subject, ever. If you want to change what the Constitution allows the government to do, pass an amendment.

" All Libertarians should strongly support Trump on this. Why? Because citizenship enables immigrants to exploit the welfare state (more so)."

This is dumb, on many levels.
First off, Libertarians who value rule of law want the law to be changed in ways that are legally sound. In this case, the Constitution provides for birthright citizenship. That isn't something the President can overrule. To remove birthright citizenship from the Constitution requires a Constitutional amendment.
Second, Libertarians value freedom. Favoring a restriction of freedom is not something Libertarians "should" do.
Third, your logic is poor. If Libertarians are categorically opposed to welfare state (a fact not in evidence) then they should strongly support peeling back the welfare state for everybody, not for just a persecuted class of people.
Fourth, the swinging pendulum. If you support the idea that President Trump can override the Constitution on this issue, you also support the idea that future Presidents can ALSO override the Constitution on this issue, and others. So when future President Commie Leftstooge issues his open-borders Executive Order, it would be as valid as Trumps' order today. I vote that Presidents don't have the power to override the Constitution, on any subject, ever. If you want to change what the Constitution allows the government to do, pass an amendment.

It would probably make libertarians more happy if immigrants were not subject to the jurisdiction of the US. According to some arguments I've seen on here that would make them way more free than citizens. Libertarians would be running to renounce their citizenship if it meant they didn't have to observe US law and police couldn't touch them. Free at last!!

If "subject to the jurisdiction of" merely meant that the person was existing in the territorial confines of the United States, it would be a redundancy, since the baby obviously was born in the United States. But of course the authors of the Fourteenth Amendment did not intend that phrase to be merely an irrelevant redundancy. Therefore "subject to the jurisdiction of" means much more than simply 'existing in the territorial confines of the United States'.

"Therefore 'subject to the jurisdiction of' means much more than simply 'existing in the territorial confines of the United States'."

It does. It means that U.S. courts can render judgments for (and to) them. So, it didn't cover the Native Americans who lived under tribal rule, and it didn't cover diplomats serving their own countries.
But it DID (and does) cover people whose parents were not citizens. That's who the birthright citizenship provision was for... people who were born in the United States to parents who were not considered citizens under the previous laws.

Illegal immigrants are of course subject to the laws of the U.S., but are not subject to U.S jurisdiction. The two are not the same. That is why the jurisdiction phrase was included. There was no need to say that the children born here of illegal immigrants were subject to the laws of the U.S., because they obviously were long before the 14th Amendment was written.

He's an idiot on this. As are many others. All the clear rebuttals of these childish arguments have been addressed 100 times in this thread already. They refuse to accept that there is a STRONG legal case that this action is perfectly permissible, since he's not changing the law, only the interpretation, and that it is the correct interpretation.

No matter how much whining progs and open borders libertarians do on this subject, it is a legit case to make. SCOTUS will decide this one... And I pray they decide correctly, and against birthright citizenship for illegals.

I would like them to decide correctly, but there are a whole host of reasons they're unlikely to, none of them legal. Such as not wanting to be assassinated, not wanting to be thought badly off, not being able to justify failing to make the ruling retroactive.

I expect he's going to lose, at least 4-5, possibly 3-6. But at least we're finally going to be having this discussion.

I fear the same thing... They better not cuck on this though. If they decide this correctly, it might actually be enough to dramatically change the odds that we'll be able to save America from total collapse.

Such a big MISINTERPRETATION of the 14th! And secondly the 14th was NEVER LEGALLY ADOPTED! Look it up, it also was the cause of RECONSTRUCTION! It was illegally ratified, done by illegal chicanery!

All persons born or naturalized in the United States,(COMMA) AND SUBJECT TO THE JURISDICTION THEREOF (comma), are citizens of the United States and of the state wherein they reside.
This had to do with SLAVES ONLY, albeit a very big mistake, who were brought here AND were under the jurisdiction of each State. This DID NOT CHANGE the North American Indian status this came in the early 20th century.
Seems you people really did learn your PROPAGANDA WELL!

What is the source of the idea that anyone born here - except children of diplomats or foreign officials - is a citizen? The Court in US v.Wong Kim Ark (1898) accepted that theory based on English common law. Suppose Congress passed a law that said: "Children henceforth born in the United States to parents who are citizens of another country illegally within the United States are subject to the jurisdiction of that country in matters of legal status, and are not therefore citizens of the United States." Would the Court overturn that law based on Justice Gray's interpretation of 19th century English common law?

There is no standard, 100% definition of jurisdiction. His point is if they passed a law that explicitly stated illegal immigrants remain under the jurisdiction of their home nation, AKA giving it a firm legal meaning, that it would simply reinforce the amendments language.

You really are a moron. You must be a Hihn sock! Nobody else is so repetitive without seeing the planet sized holes in their thinking.

I don't usually see, and never expect to see, such blatant, polemical propaganda in Reason. What's going on? You have lost your commitment to reasoned examination and inquiry.
This article is very disappointing, not for the position it advocates but for the hysterical ranting and its indefensible refusal to acknowledge that the other side even has a position.
Shame on you.

Notice that both the supporters and the opponents of the 14th Amendment agreed that it secured birthright citizenship to nearly all U.S.-born children (the primary exceptions being the U.S.-born children of ambassadors and of foreign ministers).

NOT AT ALL TRUE, in fact OUTRAGEOUSLY MENDACIOUS because you've deliberately missed out "foreigners, aliens" which are explicitly excluded! Anchor babies are NOT legal US citizens. This is what Senator Jacob M. Howard (MI) author of 14th amendment" wrote about it, [text added for clarification]:

"What I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States and subject to their jurisdiction, is by virtue of natural law and national law, a citizen of the United States. This will NOT, of course, include persons born in the United States [- those] who are foreigners, [those who are] aliens, [those] who belong to the families of ambassadors or [those who belong to the families of] foreign ministers accredited to the government of the United States,** but will include every other class of persons."